A selection of weekly articles by top Bahamian commentators.

March 08, 2006

Will Cuba Use Weapons of Mass Migration Against the Bahamas?

by Larry Smith

Some say the reason for government inaction on the Cuban dentist issue is the fear that Fidel Castro will refuse to accept the return of other illegal Cubans from the Bahamas if we allow any detainee to go to the United States in violation of a treaty obligation.

This could potentially leave us with hundreds of unwanted Cuban permanent residents. Others go further and say Castro will flood the Bahamas with refugees. They argue that either of these scenarios would be more problematic than any American fallout over returning the two dentists to Cuba.

Well, those fears are not entirely far-fetched. The Cubans have used mass emigration to pressure the US several times. Twenty-five years ago, they created a crisis that almost overwhelmed the US Coast Guard. In just five months, some 150,000 migrants poured into South Florida.

In addition to thousands of criminals, mental health patients and others cast out of Cuba, they included tens of thousands of Haitians trying to take advantage of the situation. Public services in the US were swamped and ethnic tensions were raised, speeding the departure of non-Hispanics from Miami.

The Mariel Boatlift, as it was called, ended Washington’s “open arms” treatment of Cuban refugees – a policy that had applied since the early days of the 1959 revolution. After Mariel, US immigration policy became much stricter towards Cubans, although they still received favoured treatment over other nationalities.

All of this is bound up in the 45-year vendetta between Castro and the United States that dates back to the dark days of the Cold War when Cuba became a communist satellite of the Soviet Union, almost triggering a nuclear war in the process.

“Originally we embarked on a policy of trying to poke Castro in the eye at every opportunity and one way we could do that was to welcome all the refugees from Communist Cuba,” explains law professor Jan Ting, a former senior official in the US Immigration and Naturalization Service. “That policy has been maintained up to the present day for political reasons; (because) the Cuban American vote is the swing vote in a swing state.”

The policy began by accepting more than 200,000 upper and middle class Cubans in the first three years after the revolution. A second wave of emigration began in 1965 when another 330,000 Cubans fled to the United States on so-called “freedom flights” until the airlift was closed in 1973.

For strategic reasons, the Americans accepted these migrants as political refugees and passed the 1966 Cuban Adjustment Act to facilitate their integration into American society. Under this law, Cubans qualify for permanent residence in the US after only one year.

The Mariel crisis exploded in 1980 when more than 15,000 asylum-seekers stormed the grounds of the Peruvian embassy in Havana. Facing a loss of control, Castro unilaterally opened the port of Mariel for mass emigration by boat, calling on exiles in South Florida to evacuate their relatives.

"The Miami Cubans did so in great numbers, providing the transportation for this unique boatlift, and effectively co-operating with the Cuban government against the will of the US," according to one account. After five months of chaos, Castro closed the borders again.

Another wave of emigration came after the collapse of the Soviet bloc at the end of the Cold War, which threw Cuba into an economic tailspin. As the numbers of clandestine boat-people steadily grew in the early 1990s, Castro once again opened the flood-gates. In August 1994 he declared that anyone could leave the island by sea. And more than 30,000 sailed for the US on makeshift rafts.

But the influx renewed domestic political pressures on the American government, and an accord was reached, after secret talks, that marked another turning-point. The US agreed that anyone picked up at sea (considered “illegal emigrants” by the Cuban authorities) would not be granted entry, while the visa programme for Cubans would be expanded to accept a minimum of 20,000 a year. Castro then once again closed the borders.

The agreement left a loophole for American special treatment of Cuban emigrants. While those caught at sea are returned to Cuba, those making landfall in the US continue to benefit from the Cuban Adjustment Act. This so-called “wet-foot, dry-foot” policy has led to absurd scenes of Cuban boat-people desperately trying to escape capture by the US Coast Guard.

The Cubans say the policy is “Just another dirty trick.. .if the US has an immigration law that allows Cubans to leave the island legally why then does (it) have another policy enticing them to leave illegally? You cannot have it both ways. But remember, the plight of the boat people is the cheapest and the most effective propaganda tool that the extreme right wing in Washington and the reactionary Miami Cuban mob has.”

Meanwhile, critics in the US see the policy as a “monstrous” attempt to normalise relations with Cuba: “It is a crime to try to leave Cuba without government permission,” said National Review writer Elliot Abrams. “How, under international law, can we return someone whose very act of leaving constituted a prosecutable offence in his homeland?”

Since the late 1990s, illegal Cuban immigration to the US has virtually dried up, whereas in 1998, for example, half a million Cubans applied for US visas. Experts say that uncontrolled exit – which threatens Castro’s authority in much the same way as it threatened the East German regime during the Cold War - has become much less of a problem since the 1994 agreement.

Despite claims to the contrary, Castro has always maintained firm control over emigration, making it a once and for all decision accompanied by draconian measures such as confiscation of property, costly bureaucratic procedures and social disgrace. Some are not allowed to emigrate at all - including doctors, dentists, army officers and party officials. Enforcement rests on the regime’s control over access to international transportation.

The two Cuban dentists that are the focus of the present controversy had US visas, but were denied permission to emigrate by the Cuban government. Years after their families went to Florida legally, the pair left Cuba clandestinely by boat last April and were picked up by the US Coast Guard in Bahamian waters. The Americans turned them over to Bahamian authorities as they are required to do.

They have been imprisoned in the Carmichael Road Detention Centre ever since. Last summer they applied to the Foreign Ministry for asylum, but relatives say no reply was ever received. Despite numerous behind-the-scenes attempts by American interlocutors to free them, the government simply stonewalled the matter. So the family went public recently and now the case has become a cause celebre in Florida.

Officially, our hands are said to be tied by an agreement with Cuba that dates to 1996, when there were hundreds of refugees stuck at the detention centre with nowhere to go. The only recourse was to keep them here or send them back at our expense. This was similar to the agreement to return illegal Haitians who have nowhere else to go.

An amendment to the agreement in 1998 reinforced the Castro’s regime’s position that “all Cuban illegal immigrants who arrive in the territory of the Bahamas from Cuba shall be repatriated to Cuba” within 15 days, the implication being that there were to be no exceptions to the rule.

The Cuban regime says its citizens want to leave purely for economic reasons and blames those conditions on the collapse of the Socialist bloc and the effects of the American trade embargo – in other words, we are back to the old vendetta. And we should not overlook the fact that Castro has become a revered figure in the halls of CARICOM for standing up to the gringos.

However, this situation is not as difficult as some would have us believe. First, we have no business upholding laws which deny people the basic right to leave their own country. Second, a person who enters the Bahamas, but has legal access to a third country, should be allowed to go and not be imprisoned at the whim of an aging dictator. Third, the matter should have been dealt with expeditiously – one way or the other - at the very outset and not allowed to deteriorate.

The two dentists are not illegals who either have to be returned against their will or allowed to stay in the Bahamas. Their case is not the same as undocumented Cubans, Haitians or others who arrive on our shores.

Crocodile tears notwithstanding, no competent foreign minister would have allowed this situation inadvertantly to mushroom to such alarming proportions. And it is interesting that the government’s response so far seeks only to justify the damage we are prepared to do to our relations with the US, not to mention our willingness to send two innocent people back to imprisonment.

We have to agree with those who argue that the mishandling of this case and the publicity it has generated make the dentists de facto political refugees. They should therefore be given asylum.

Comments

au contraire my trusty op editorialist...their visas were expired that's why the coast guard left them on that cay for us to deal with...they should have been shipped home way back when...so we wouldnt find ourselves in this present situation. I blame Fred Mitchell for being asleep at the switch, or maybe he wanted it to go down like this. Where was he, on one of his rendezvous abroad doing god knows what? We have no choice now, our relationship with the US has been tarnished so that we have to send them to our good friends to the North.

It is unfortunate that in this day and age governments on obviously many political fronts and political persuations still permit and assist each other to hold a human being as a hostage and or prisoner because of inaction.

Shame on The Bahamas authorities for failing in an obvious misinterpratation of an agreement. We are speaking of the higer law of morality in regard to the Cuban dentists.They should have been sent to the US 10 months ago befor a problem was created by our inaction.

It would indeed be a black day for The Bahamas and indeed a travestry if those people are either not given political asylum in The Bahamas or sent to whichever country they have legal documents for and desire to go to.

By the way, the Bahamas would need a proper refugee determination process and amended bilateral agreements with Cuba and the US to acheive your recommendations..... By the way, being a 'denist in Cuba' doesn't necessarily mean you have a well-founded fear or persecution (according to the 1951 Convention definition) and should be given asylum. I often wonder why Bahamians are more sympathetic to professionals from Cuba rather than labours from countries full of human rights abuses and political strife (not mentioning any names, eh hem) in terms of granting refugee status.

Since there are already UN-classified refugees here (including a Nigerian lawyer and a Cuban doctor), I assume that there is such a determination process.

No preference for one class over another was suggested or intended. The dentists had visas and were prevented from leaving. The Americans have since revalidated their visas.

If a Haitian farmer drifts ashore here with a US visa should we send him back to Haiti? Probably a bad analogy since he would presumably have been able to make some arrangement to go directly to the US.

1. States, not the UN, decides who is a refugee. The Bahamian refugee determination process is an ad hoc method as compared with a Refugee Board or something like this. Asylum status is determined by Cabinet (who are informed by decisions taken by Immigration, Foreign Affairs and UNHCR).

2. States look at bilateral agreements, then the multilateral ones. Take a look at the bilateral agreements Bahamas has with both Governments.

The Bahamas is not obliged to give refugee status to Cuban professionals wanting to join their families in Florida. The Bahamas always has a choice. But this issue is less about asylum and more about politics. If the Prime Minister has been charged with resolving this issue he should act fast and not be deterred by pressure from the U.S. or Cuba. This is not the first time the Bahamas has been in this situation. Perhaps this is the first time the U.S. press has devoted so much energy on the issue. The Bahamian press also has a role in igniting these issues as well. The fear of thousands of Cubans fleeing to the Bahamas, etc is utter nonsense and greatly confuses people who are unfamiliar with the political and legal aspects of this issue.

In answer to the question, why are the dentists stirring up such a storm? Let me ask you, would you like to move to the detention centre for several months? If I were seeking asylum, I might go crazy after several months in the detention centre away from my family, friends, culture and food! Especially when I kept hearing that a decision is pending in my case. Detention of irregular or illegal migrants is against International Law—they haven’t committed a crime (other than violations of our immigration act) so they don’t deserve to be detained. These people still have rights. It isn’t fair to keep people detained under uncertain terms for months on end (there are some exceptions such as national security risks). For the dentists, leaking information to the press is one way them getting attention to their cases and hopefully be given an official response from the Government. It is a desperate tactic.

When a Cuban National or for that matter any non-Bahamian National is issued a U.S. Visa or has an expired U.S. visa in their passport, this is not a basis for a refugee claim. And just being form Cuba does not make you a refugee. You must have a well founded fear of persecution. You can’t just happen to be born in a Communist State or under a repressive regime or in a failed State (eg. decisions made with regard to denied asylum claims of Afghan refugees in various EU countries).

If the Prime Minister makes a determination (in conjunction with relevant authorities) on the asylum claims of Marialys Darias Mesa and David González Mesa it should be done swiftly and according to the definition of a refugee in the 1951 Convention on the Status of Refugees. If the Prime Minister determines that the dentists do not have a well-founded fear of persecution, then the bilateral agreement should be upheld and the dentists should be returned to Cuba immediately. This decision, however, would need to take into serious consideration the risk of non-refoulement.

Hypothetically, if the dentists were given asylum status in the Bahamas, they do not necessarily have the right to migrate to the U.S. There are thousands of refugees who would love to be resettled in the U.S. Why do you think the U.S. isn’t bothered by us detaining migrants? The point is if you are really a refugee, you would settle anywhere because returning you to your country would result in you being mistreated or possibly tortured or killed. If you read the testimony of refugees they give heart wrenching accounts of persecution and they claim that they would live anywhere. I would like to think that the Bahamas has a good standard of living and were someone granted refugee status, they would be welcomed by the community. I resent the depiction of the Bahamas in any other light.

Any other questions? Just teasing. I would so much rather be blogging about Cuban beans and rice. ….By the way, I posted something on your blog about the Bahamas’ voting at the UN…. check it out.

While I appreciate your other points and may respond later, my latest question to you was - if we have no choice, why are they still here? That represents a choice other than sending them back.

The opinion point of my original article was that (a) this should have been dealt with at the outset, and (b) they had, and still have, legal access to the US and were prevented (against their will) from taking advantage of that access by a dictatorship.

If they can't be sent to the US, under the cirumstances, they should be given asylum.

I agree that the situation should have been dealt with at the outset. And according to Cuban laws and Bahamian laws they did not necessarily have legal access to the U.S. They left Cuba illegally and they arrived in the Bahamas illegally. Although, I'm not a lawyer and I'm sure there are several users with LLBs, JDs and LLMs that would explain the legality of their claim.

I am still amazed that people are surprised when the Government doesn't make an immediate policy decision. I always expected the Government to take at least a year for each policy decision- after all they have very little written policy, so as we both said everything is ad hoc and all of Cabinet must agree on any decision taken...between the one hour speeches, the back benchers snoring and everyone claiming to be the smart lawyer it is no wonder we make any policy decisions sometimes.

This controversy over the Cuban dentists, and the position that The Bahamas should abide by its agreement with Cuba, reminds me of what John Locke said many years ago: "The end of law is not to abolish or restrain it, but to preserve and enlarge freedom."
Returning those people to Cuba, when they have documents to go to the United States, does not preserve freedom, it places them back into a system they apparently wish to flee of their own free will, and is morally repugnant.
Maybe we should renegotiate our agreement with Cuba because surely we would not want to restrain people who seek a different or better way of life. An option we are fortunate enough to take for granted as Bahamians.